The Government has agreed to change the rules on the payment of
lawyers’ fees in some criminal trials so that defence and
prosecution are on an equal footing, following an inquiry
prompted by controversial Post Office cases.
It has agreed to a change in the law relating to payments in
cases brought to court under ‘private prosecutions’. Private
prosecutions are cases brought by individuals or companies,
including commercial organisations, rather than the Crown
Prosecution Service. The current rules are unfair and favour the
prosecution over the defence.
The law change follows an inquiry by the House of Commons Justice
Committee which made several recommendations in a report, Private
prosecutions: safeguards, published in October 2020. The
Government’s response to the Committee’s report, strictly
embargoed to 0001 HRS Thursday March 4, 2021, is here.
The Committee mounted its inquiry after a request to the Chair of
the Committee, Sir MP, from the Criminal Cases Review Commission. The
Commission made the request after it had referred a record number
of convictions of Post Office private prosecution cases to
appeal. These referrals came from a group of over 900 Post Office
workers who had been successfully prosecuted by their employers
for fraud or similar offences. The cases caused considerable
public controversy when the convictions were queried.
The 47 cases which have been referred to the Court of Appeal are
sub judice.
The Chair of the Justice Committee, Sir , said:
“I am delighted that the Government has decided to support one of
our recommendations and, crucially, has given a commitment to
legislate.
Our inquiry found that the present arrangements for funding
private prosecutions are unfair. Currently, a private prosecutor
can recover all their costs from public funds even if the
defendant is acquitted. This gives an unfair incentive to the
prosecution because, by contrast, an acquitted defendant can only
recover costs capped at legal aid rates. The Government’s
response commits to legislate to ensure that the legal aid cap
also applies to private prosecutors. This is a welcome levelling
of the playing field”.
The Post Office case also pointed to another issue of wider legal
interest regarding private prosecutions. The Justice Committee
report said it appeared that there was a lack of oversight from
the authorities over the growing number of private prosecutions
currently taking place. In the Post Office case, for example, it
seemed that the only institution aware of the very large number
of cases being brought by the Post Office was the Post Office
itself.
The Justice Committee report therefore recommended that HM Court
and Tribunals Service should establish a central register to keep
track of all private prosecutions in England and Wales.
The Government agreed with the Committee that such a register
would go some way towards putting the oversight issue right. The
Government said the establishment of such a register was already
in hand and would be completed by the end of this year.
